By Nancy Spannaus

March 16, 2024—There are few institutions more emblematic of the principles of the American republic than the free press. Extensive debate in the newspapers was crucial to spreading the ideas of the American Revolution itself, and then in creating an informed citizenry after the establishment of the United States. Our literacy rate was the envy of the world.

Are we about to turn our backs on that legacy?  Perhaps a review of our history will encourage people to take up the fight to save this vital tradition.

The Zenger Trial

The iconic American battle for freedom of the press, versus the oligarchical tradition of lèse-majesté,[1] occurred in 1735 in New York City. On trial for “seditious libel” was one Peter Zenger, the printer of the New-York Weekly Journal. The Journal was a severe critic of New York Governor William Cosby, and Cosby had gone to extraordinary lengths to try to shut down the paper. Having failed in other attempts, he went after Zenger legally.

Freedom of the Press: An American Hallmark
Andrew Hamilton arguing for Zenger’s freedom

Zenger faced a serious problem. According to British law, then in effect in the colonies, he was entitled to a jury trial, but the jury’s discretion was limited to determining whether the accused was guilty of having produced the libel. The truth of what he had been responsible for printing was not to be considered by the jury, although it could be by the judges (who, in this case, were close allies of Governor Cosby). But the government’s view, following British and general European precedent, could be encapsulated as follows: “The greater the truth, the greater the libel.”

After his attorneys were barred from defending him before the Supreme Court of Judicature, where Zenger had been charged, the printer had to rely on a court attorney, one John Chambers.  Chambers did a good job in jury selection and at trial, but Zenger’s allies had provided for additional legal support. After Chambers finished his presentation, pre-eminent attorney Andrew Hamilton rose to address the court.

Zenger did publish the attacks on the Governor which were at issue, Hamilton said, but his guilt or innocence should not rest on that fact, but whether the attacks on the Governor were true. The jury should make its ruling on Zenger’s guilt based on the question of truth. Hamilton concluded:

The question before the Court and you, Gentlemen of the jury, is not of small or private concern. It is not the cause of one poor printer, nor of New York alone, which you are now trying. No! It may in its consequence affect every free man that lives under a British government on the main of America. It is the best cause. It is the cause of liberty.[2]

The jury took Hamilton’s argument to heart, and declared Zenger not guilty. As Founding Father Gouverneur Morris said later, the Zenger case was “the germ of American freedom, the morning star of that liberty which subsequently revolutionized America!”

The Zenger trial outcome did not serve as a legal precedent per se, but the commitment of the Americans to using the press to mobilize against Parliament, the Crown, and their agents played a major role in advancing the Revolution.

The Press in the Revolution

The American colonies had a couple dozen newspapers by the mid-18th century. When Benjamin Franklin, a newspaper publisher himself, became deputy postmaster of the British government’s Crown Post in 1753, he greatly improved the intercolonial service. As the conflict with Great Britain heated up, the newspapers played a vital role in spreading intelligence between the colonies. The majority were aligned with the patriotic movement, and were utilized by the Committees of Correspondence (founded in 1774) which were working to build colonial unity against the British crackdown.

The Franklin statue in the National Postal Museum. (Nancy Spannaus)

The British government was not amused by the negative newspaper coverage, and after Franklin released damning letters from Massachusetts Governor Thomas Hutchinson to be published, he was dismissed in 1774. That same year, printer William Goddard, who had been cut off from newspaper deliveries by the Crown Post because of allegedly subversive views, decided to set up an alternative service, the Constitutional Post. In 1775, Congress agreed to support his system, and again appointed Franklin to head it. The network of communication spread rapidly, covering the colonies from Maine to Florida.[3]

Supply shortages and the fighting hampered the functioning of the newspaper network during the Revolutionary war, but in the subsequent period, the press played a vital role in the national debate over the future of the new nation. Newspapers covered debates in the British parliament, and seminal documents leading to the establishment of the Constitution. It was in newspapers, for example, that the Federalist Papers first appeared, and in newspapers established in the early 1790s where the political conflict erupted which led to the development of the Democratic-Republican and Federalist parties.

Congress Acts

The importance of the free press as a venue for debate, commerce, and education was recognized immediately by the new federal government. The first step, of course, was the passage of the First Amendment, which reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Freedom of the Press: An American Hallmark

In making the postal service the responsibility of the United States in the Constitution’s enumeration of Congressional powers, the Founders were also supporting a free press. The Federal government was committed to providing a public service that would greatly aid the spread of newspapers to educate the public. The service’s role as “the carrier of news and knowledge” is enshrined in an engraving on the front of the National Postal Museum in Washington, D.C.

When it passed the Postal Service Act in 1792, Congress provided for newspapers to be sent through the mails at a discounted rate, subsidized by the Federal government itself. President Washington’s commitment to seeing U.S. citizens educated on the affairs of the day led him to go further, and advocate for newspapers to be mailed free of charge. Provisions in the act also were intended to prevent delaying or destroying newspapers by postal employees.

As the partisan political battles of the 1790s heated up, the Federalists used their majority in 1798 to pass the Sedition Act (44 to 41), which gave the Federal government the power to prosecute anyone involved in publishing “false, scandalous and malicious writing or writings against the government of the United States.” (Click here for the text.) Technically, the bill did allow for truth to be a defense against the prosecution, but it is unclear how much this was respected. Offenses could, and sometimes did, include cartoons and other such mockeries of public officials, up to the President. Historians judge that about 25 cases of seditious libel were brought against anti-Federalist editors and politicians, with about 10 convictions gained.  And while the act expired in 1800 (as planned), the Jefferson administration was not loath to use state seditious libel laws against its own political opponents.

The Croswell Case

The famous case which paved the way for New York State to change its seditious libel law, and had significant repercussions nationally, was the “People v Croswell,” a prosecution against New York Federalist publisher Harry Croswell by the state Republican administration. Croswell’s offense, for which he was found guilty, was for writing that President Jefferson had paid journalist James Callender to publish malicious attacks on Presidents Washington and Adams. Evidence of the truth (or not) of the attacks, however, was not allowed to be a matter at trial.

 

Freedom of the Press: An American Hallmark
The Croswell case courtroom.

On appeal, the defense succeeded in bringing in lawyer Alexander Hamilton to argue for Croswell. In a later widely publicized oration lasting several hours, Hamilton argued that Croswell should be granted a new trial, in which the truth of the alleged libel, as well as his intent in publishing it, should be deliberated upon by the jury. While acknowledging that press freedom should not be totally unfettered, Hamilton homed in on the issue of truth.

Hamilton’s argument has been summarized by historians as follows: “The right of giving the truth in evidence, in cases of libels, is all-important to the liberties of the people. Truth is an ingredient in the eternal order of things, in judging of the quality of acts. He hoped to see the axiom, that truth was admissible, recognized by our legislative and judicial bodies….”

The judges issued a split decision (2 for and 2 against), and thus no legal precedent was established. Yet Callender was released from prison, and Hamilton’s argument’s impact was felt nationally, as a pamphlet summarizing the arguments was published soon afterwards.[4]

The Role of the Press

In 1801, Alexander Hamilton himself established a newspaper, The New York Post. Many years ago, I found a quote from him on the purpose of that project, which I unfortunately cannot find the source of today. I used it on the masthead of the paper I was editing. It read: “It is by the press that the morals of the country have been destroyed, and by the press that they will be restored.” A similar quote attributed to Hamilton is being publicized today by the website Rare HD Wallpapers: “It is the Press which has corrupted our political morals – and it is to the Press we must look for the means of our political regeneration.” (also without a source)

That noble purpose for the press – of lifting up the morals and knowledge of the citizenry – has been shared by many of our great statesmen, including Benjamin Franklin and Frederick Douglass, both of whom chose to be memorialized for their role as newspapermen rather than statesmen. While they seldom shied away from taking a political view, they devoted significant space in their papers to (often lengthy) articles of substance on political affairs, as did many other papers in later years.

Freedom of the Press: An American Hallmark
Frederick Douglass’s newspaper The North Star

The explosion of newspapers in this country during the 1820s and 30s, of course, featured a different kind of journalism, which could hardly be differentiated from scandal sheets. This was not the kind of press which Founders such as Franklin, Hamilton, and Washington envisioned; indeed, it often had very negative effect. But, by virtue of our Constitution and republican tradition, it is not to be suppressed. Rather, it underscores the need for a press which is devoted to promoting education and reason – the means, as Abraham Lincoln advocated, by which our morals can be restored.

Censorship can take numerous forms, of course. Some come by financial means, as we see with the widespread shutdowns of newspapers around this country, dictated in many instances by financial hardship, or withdrawal of funds. Other forms include the outlawing of certain topics by various “authorities,” ranging from social media outlets, to corporate boards, and even AI. Some today are arguing vociferously for Federal action to dictate what is truth. And we are on the verge of seeing censorship expanded to Congressional legislation.

Can we stop our slide down this slippery slope?  In my view, that is a major task before us as a nation.

[1] “Lèse-majesté” is a doctrine which labels it treasonous to attack the monarch – and by extension, the institutions of government.

[2] For a short description of the Zenger trial, click here.

[3] For a substantial discussion of the role of the postal service, which predates the Constitution, click here.

[4] For a more elaborated report on the Croswell case, see my 2020 blog article here. You can find much more, including attacks on Hamilton’s approach, in various legal and scholarly journals.

 

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